In Kaye v. Lambeth LBC and Price v. Leeds CC  UKHL 10 the House of Lords dismissed the appeals against possession orders sought by the two councils. A seven-member appellate committee accepted the submissions made on behalf of Leeds that a trespasser is not entitled to resist possession proceedings on the basis of Article 8 ECHR, save in circumstances where the decision to seek possession was one that no local authority could rationally have made or where there is procedural unfairness. The committee also accepted the submission that other occupiers are not entitled to resist possession proceedings in reliance on Article 8 unless the domestic law governing the proceedings is itself incapable of protecting Article 8 rights.
There was a detailed consideration of the application of the ECHR to property/possession claims and the earlier decision of the HL in Qazi.
The committee (agreeing with Lord Bingham on this point) further endorsed Leeds’ submission that lower courts remain bound by domestic authority notwithstanding later ECtHR decisions which appear to conflict with that authority. (para.s 40-45):
“44. … The effective implementation of the Convention depends on constructive collaboration between the Strasbourg court and the national courts of member states. The Strasbourg court authoritatively expounds the interpretation of the rights embodied in the Convention and its protocols, as it must if the Convention is to be uniformly understood by all member states. But in its decisions on particular cases the Strasbourg court accords a margin of appreciation, often generous, to the decisions of national authorities and attaches much importance to the peculiar facts of the case. Thus it is for national authorities, including national courts particularly, to decide in the first instance how the principles expounded in Strasbourg should be applied in the special context of national legislation, law, practice and social and other conditions. It is by the decisions of national courts that the domestic standard must be initially set, and to those decisions the ordinary rules of precedent should apply.”
A clear divergence emerged of views among the 7 Law Lords as to the correct approach to the application of the Convention and modification to the approach in Qazi v. Harrow. The appellants were travellers who trespassed on a recreation ground belonging to the council, and sought to defend possession proceedings in reliance on the ECtHR decision of Connors v UK. Their defence was struck out. The Court of Appeal accepted the appellants’ argument that Connors was inconsistent with Qazi, and that, absent the principle of stare decisis it would have allowed the appeal. It concluded that the principle required it to follow Qazi¸ so it refused the appeal but itself gave leave to appeal to the House of Lords. The House of Lords by a majority (Lord Bingham, Lord Nichols and Lord Walker dissenting) disagreed with the Court of Appeal and agreed with Leeds that Connors required only a limited exception to the principle in Qazi that Article 8 could never provide a defence to possession proceedings.
The majority view (Lord Hope, Lord Scott, Baroness Hale and Lord Brown) was encapsulated in para. 110 of Lord Hope’s jugdment:
“110. But, in agreement with Lord Scott, Baroness Hale and Lord Brown, I would go further. Subject to what I say below, I would hold that a defence which does not challenge the law under which the possession order is sought as being incompatible with the article 8 but is based only on the occupier’s personal circumstances should be struck out. I do not think that McPhail v Persons, Names Unknown  Ch 447 needs to be reconsidered in the light of Strasbourg case law. Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder  AC 461. The common law as explained in that case is, of course, compatible with article 8. It provides an additional safeguard.”
Ashley Underwood QC represented Leeds City Council